It is no secret that in many disadvantaged communities we often witness or hear about conflict which transpires between family members after a loved one has died intestate (without a Will). Many are not aware of the fact that this is an occurrence which can be prevented. How? By the deceased leaving a valid Will behind, not only would they be protecting their loved ones from family rivalry, but they would also have an opportunity to have a say on how their estate should be distributed after their death. This is known as freedom of testation.
What is a Will?
A Will is a document in which a person (the testator) specifies the method(s) to be applied in the distribution of his/her estate upon their death. When a person dies without a Will, it is said that the person died intestate and the distribution of their estate will be in terms of the Intestate Succession Act.
Why is it important to have a Will?
An example which many may be able to relate with goes as follows: The deceased dies intestate and leaves behind a family home which was occupied by some of his/her children. Upon death the deceased estranged children come out of the woodwork and start bullying the occupants into moving out although they have not contributed towards the family home in years. The family home inevitably causes incessant conflicts amongst the surviving family members. Had the deceased left a valid Will, he/she could have bequeathed the family home to the family who was residing there before death. alternatively, in the Will the testator may elect a caretaker to manage the affairs of the household in the absence of dependants who live there. Basically, a Will allows there to be a specific beneficiary and clearly expresses the testators intentions. A Will is especially important where one has minor children and would like to make provision for legal guardians upon their death. In the Will the testator will elect the guardians and also make provision for a testamentary trust to be formed, this trust will set out how the assets are to be administered for the beneficiaries and when the assets are to be distributed.
Who is competent to execute a Will?
In principle, anyone who is capable of performing legal acts is eligible to execute a Will. Testamentary capacity is governed by the Wills Act and as a result; everyone who is mentally able to appreciate the nature of their act at the time of executing the Will and is above 16 years of age is competent to execute a Will.
What are the requirements of a valid Will?
A Will can be written by hand or typed and printed. The signature of the testator/testatrix must appear at the end of the Will (i.e. at the end of the written text/ last paragraph) and must be signed in the presence of two or more competent witnesses. The witnesses must attest to and sign the Will in the presence of the testator/testatrix and of each other. If the Will consists of more than one page, each page other than the last page must be signed anywhere on the page by the testator/testatrix. Although the testator/testatrix must sign all the pages of the Will, only the last page of the Will needs to be signed by the witnesses.
It is always best to use the services of an attorney to ensure that your Will meets the required formalities of a valid Will. A number of banking institutions also offer this service.
Legal-Aid provides these tips:
- Gather all the necessary information and documentation needed;
- Make a list of all your assets and liabilities;
- Decide how you want to divide your assets after all your debts have been paid;
- Seek professional assistance to draft your Will;
- Sign your Will in the presence of two competent witnesses;
- Store your Will in a safe and dry place, or you can have it registered on the South African Registry of Will and Testaments.
Remember, your Will, your wishes.
If you have a story similar to the scenario above we would love to hear from you. Comment below with how you or your loved ones overcame this challenge.
By Boitumelo Mokhoase